Standing Committee B

[Mr. Roger Galein the Chair]

Clause 7

Emergency services

Amendment proposed [this day]: No. 119, in page 5, line 9, leave out
to which this section applies
and insert within subsection (2).[Mr. Sutcliffe.]

Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this it will be convenient to discuss Government amendments Nos. 120 to 122.

Dominic Grieve: I think that the last word I used before we adjourned was commercial. That seems to stick in my mind. I was saying that commercial organisations would be facing the same difficult life and death decisions as a statutory authority if they were providing fire protection. I had a question mark in my mind about why they should be removed from the protection that will be given to statutory bodies that carry out an identical role.
I was also conscious that the hon. Member for Kingston and Surbiton (Mr. Davey) wished to intervene, so now might be a good moment to give way to him.

Ian Stewart: Can the hon. Gentleman remember what he wanted to say?

Edward Davey: Fortunately, I can remember. The hon. Member for Beaconsfield (Mr. Grieve) jogged my memory when he used the word commercial. Will he speculate on whether the Minister thinks that commercial fire services might be less risk averse if the offence were to apply to them than fire services in the public sector? If the hon. Gentleman thinks that that is the Ministers thinking, can he explain why?

Dominic Grieve: If an organisation was providing highly skilled services for reward, it would be dependent on its reputation. That is not to say that it might not be sloppy in the way in which it carries things out. However, it would be equally affected and might be made risk averse if it considered that a draconian sanction could be visited on it if, as a result of making a professional judgment that was subsequently called into question and one that was made under the pressure of events, it started to err on the side of caution and, as a result, failed to make the right decision.
In a funny way, I am advancing a swings and roundabouts argument. Going back to what the Minister said about statutory bodies, we could argue that no statutory body dealing with fire and rescue would ever be prosecuted under corporate manslaughterif that were possibleif it simply made an error of judgment under the pressure of events. Such action would not amount to the gross negligence systems failure at which the Government are aiming, so why are we taking the statutory bodies out of the possible orbit of being prosecuted for corporate manslaughter? Doubtless, the hon. Gentleman will put forward some powerful arguments for giving that protection, but if it were to apply to a statutory body, I am at a loss to see why it should not also apply to a commercial body.
Picking up what the hon. Member for Kingston and Surbiton said, there is an implication either that commercial bodies do not deserve a special exemption or that they might be more cavalier in their approach and thus merit greater sanction because they could be sloppier. I should be interested if the Minister can produce evidence to suggest that a private firefighting organisation that makes a profit is likely to be any sloppier than another organisation. I have always assumed that private firefighting organisations are contracted to provide fire services at airports, particularly at aerodromes. It tends to be a highly technical role, which requires high levels of training in an environment where if the commercial organisation were to end up making a mistake, it would probably ruin its reputation and be put out of business anyway because it would never be used again.
There is actually a greater sanction on commercial organisations in such matters because if they foul up their reputation might be destroyed, whereas it is a feature of a statutory organisation that, on the whole however much it fouls up, it continues to exist because there is no possible replacement for it unless the service is privatised. I hope that the Minister will take on board my thoughts and possibly consider them outside of the Committee.

Edward Davey: I support the comments of the hon. Member for Beaconsfield (Mr. Grieve). The Minister has not yet made the case either in previous debates or in relation to the amendments that extra exemptions are needed. Let us be clear: the offence created by the Bill is narrowly defined. An organisation must have acted in a grossly negligent manner so, for there to be an extra exemption, the Minister must explain why a statutory body should still be exempt, although it had acted in a grossly negligent way and the offence was so great that it could be fitted into such a narrow scope. That is a hard test for the hon. Gentleman to prove, even with the particularly sensitive and difficult case of the emergency services. It is not that I am not open to be convinced. I should like to be convinced. I am always helpful to the Minister, but he has yet to make that case.
If the Minister were right, can he explain whether amendment No. 122 would apply to the RNLI? I wish to express an interest. I am a shoreline member of the RNLI and I am worried about those who volunteer for that amazing service. They risk their lives. They are not members of a statutory service nor are they doing it for commercial gain. Will they be subject to the exemption as a statutory body? Will they be treated differently from those on commercially operated merchant ships? Will the hon. Gentleman make it clear whether the coastguard services provided by the RNLI will be covered?

Gerry Sutcliffe: Mr. Gale, this morning members of the Committee were suspicious of my motivations, yet this afternoon they say that I am contradicting myself when explaining our approach to the exemptions. I am slightly surprised that the Opposition wish to extend an exemption to the private sector, which is capable of withdrawing its services, but do not wish to extend it to the police when they are protecting the public. That is a bit of a contradiction there, but we shall put it to one side.

Dominic Grieve: I hope that I have made it clear that most of our amendments are probing amendments, but I am trying to achieve some internal consistency. There are grounds for arguing that there is a lack of internal consistency in the way in which matters are being approached. Some organisations are being pushed within the scope of being prosecuted, while others are kept out of it. If there is a thread throughout the clause, it seems to be a desire to protect public service providers, but not commercial or private service providers that have exactly the same role.

Gerry Sutcliffe: I am grateful to the hon. Gentleman. It is not the Governments motivation to cause greater problems for the private sector. The key point is emergencies to which we shall come in a minute.
Organisations within the public and private sectors are different in two key respects. First, the private sector organisation can choose the terms and contractual arrangements with a client and, on that basis, agree the service that it can supply. Undoubtedly, that will take into account the resources that the client is prepared to have standing at the ready. Secondly and perhaps more importantly, a private organisation can call in the back-up of the fire brigade if it is unable to cope with the demands of a given situation. It can deal with the matter as the hon. Gentleman has outlined, but if it goes wrong it can call the fire brigade as a back-up. There is certainly no back-up for the fire brigade.

Dominic Grieve: That may be true, but if private services were dealing with a fire on an oil rig in the North sea, which would fall within the measure, I doubt very much whether a lot of statutory back-up could be called in to help. The Royal Navy might come along and provide some assistance, but in reality the entire management of that crisis is likely to stay in the private sector.

Gerry Sutcliffe: That is a key point, because the company would be acting in an emergency situation. In the hon. Gentlemans example, the private company operating in the aerodrome would be exempt as well, because it would be operating in an emergency situation in place of a statutory body. That is the key point for the Committee to rememberwe are talking about emergency situations.
The hon. Member for Kingston and Surbiton took us back to what the offence was about, and he was quite right to do so, because we need to step back and remind ourselves what the offence was intended to deal with in the first place. Its main aim is to tackle organisations that engage in activities that create risks to the safety of others and fail to manage those risks appropriately.
We agreed that applying the offence to public services is important. They too must take their safety responsibilities seriously, and the offence applies widely to employer and occupier duties when public bodies are supplying services. There is a band of activities in which public bodies are under responsibilities to protect the public from risks and harm generated by others, and they need to carry out those responsibilities properly, but the exemptions raise the question whether a public body should be responsible for manslaughter if it has failed to do so. In our view, that is taking manslaughter too far. That would amount to saying that organisations such as the fire service or NHS bodies were responsible for a persons death because they failed to stop them from being killed. We must be careful about the implications of imposing legally binding duties or making organisations more risk averse.

Edward Davey: The point that I was seeking to make was that I wanted the Minister to explain why, if an organisation such as the health or fire service acted in a grossly negligent way, it should be exempt if it acted in such a tawdry manner.

Gerry Sutcliffe: I am trying to see the circumstances. If it were grossly negligent in circumstances other than dealing with an emergency, of course it would be liable. That is why we have removed Crown immunity. But we are talking about cases in which the service should not have to think about its reactions and whether it should be risk averse, so that it can carry out what needs to be done to protect the public.

Edward Davey: The Minister is still not convincingme. We are talking about emergency services. Most of their activities, by definition, involve dealing with emergencies. It is their core business. If they are grossly negligent in their core business, I suggest to him, this is not necessarily the place to give an exemption. I want to be convinced, but he must go a bit further.

Gerry Sutcliffe: Mr. Gale, if it takes me all day, I will try to convince the hon. Gentleman. [Interruption.] Perhaps not, given that it is a late stage in the week of parliamentary activity.
The definition of an emergency situation is that the circumstances are life-threatening or threaten to cause serious injury or illness or harm to the environment or buildings or other property. The decisions takenwe talked about this in military termsare split-second decisions. The exemptions that we are considering apply to those conditions, not to how the organisation goes about its business in general. There are small areas where the exemptions are entirely appropriate. Perhaps the hon. Gentleman does not agree with me, and however hard I try he will not accept my position, but I think

Dari Taylor: I would be interested to hear whether my hon. Friend has received representations from the fire service or any other emergency service stating that the protection awarded in the Bill is not adequate. I have received no such representations.

Gerry Sutcliffe: I am grateful for the intervention. My hon. Friend is helping me in her own way. She makes a fair point about the extensive consultation on the Bill. We have tried to strike a balance on responsibilitiesnot giving a Crown body an easy exemption, but being mindful of the impact of a decision on risk aversion. She is right that the emergency services have not contacted us saying that what we are doing jeopardises the position.

Edward Davey: Shock, horror!

Gerry Sutcliffe: To answer the hon. Gentleman, the Royal National Lifeboat Institution would be exempt in providing emergency services. I hope that the Committee will support the Government amendment.

Dominic Grieve: I am grateful to the Minister. I shall reflect on the Governments approach in changing the Bill. However, I am still concerned. An argument can be made both ways. People could ask why we are providing protection for statutory bodies when, unless they do something really bad, they will never be prosecuted anyway. Alternatively, they could say, If you are going to provide this protection because you think it is justified, why are you excluding the commercial sector, which will have to make the same decisions in an emergency as the statutory sector? I am not completely persuaded that we have got it right, but I shall reflect on the debate.

Amendment agreed to.

Amendments made: No. 120, in clause 7, page 5, line 13, leave out to which this section applies and insert within this subsection.

No. 121, in clause 7, page 5, line 17, leave out from organisation to end of line 18 and insert
providing a service of responding to emergency circumstances (or circumstances believed to be emergency circumstances) either
(i) in pursuance of arrangements made with an organisation within paragraph (a), (b) or (c), or
(ii) (if not in pursuance of such arrangements) otherwise than on a commercial basis;.[Mr. Sutcliffe.]

Edward Davey: On a point of order, Mr. Gale, I do not wish to be pedantic, but was Government amendment No. 122 moved?

Roger Gale: Everything comes to those that wait. It will be moved at the appropriate time.

Dominic Grieve: I beg to move amendment No. 132, in clause 7, page 5, line 19, leave out paragraph (e).

Roger Gale: With this it will be convenient to discuss amendment No. 144, in clause 7, page 5, line 22, leave out paragraph (g).

Dominic Grieve: The amendments will perhaps prompt a debate that is narrower in scope than our debate on amendment No. 119 and the subsequent amendments, although I accept that there is a degree of overlap.
What is an emergency service? We have to consider not what we think an emergency service may be, but what it says in the Bill. We are told that the organisations that claim exemption, except if they are mentioned in 3(1)(a) or (b), owe no duty of care to people who are at the receiving end of their services, as opposed to employees or in respect of premises. The organisations include fire and rescue authoritiesthe Minister has explained whyand a relevant NHS body, which is defined in clause 7(3) as
an NHS foundation trust, National Health Service trust, Special Health Authority, Primary Care Trust or Local Health Board in England and Wales.
I think that the definition refers to the same things in Scotland, and in Northern Ireland it also encompasses
a Health and Social Services trust.
The exemption is to cover emergency circumstances, but those are defined as
circumstances that are present or imminent and...are causing, or are likely to cause, serious harm or a worsening of such harm, or...are likely to cause the death of a person.
Serious harm is defined as
serious injury to or the serious illness (including mental illness) of a person
and
serious harm to the environment
and property.
It is difficult to see that the NHS will not be exempt from the possibility of being charged with corporate manslaughter in respect of every hospital patient who happens to be in hospital with a condition that might be life threatening, because the wording does not confine what is going on to the accident and emergency department. It extends much wider than that, which troubles me. That might be what the Government intendedperhaps it wasbut that is not how I initially read the section on emergency services.
A few years ago, I was involved in the early stages of a case that involved two young hospital doctors. A patient with a life threatening condition had undergone an operation that was more than routinethere can be no doubt of thatand subsequently died of infection. The doctors were prosecuted for manslaughter. The argument was that the doctors, who were very junior, had failed to pick up the signs of post-operative infection in the patient and that that was the direct cause of death; the patient would otherwise have survived. They were successfully prosecuted and convicted.
I was not involved in that aspect of the case, but the doctors received either short custodial or suspended sentences; their careers, of course, were wrecked. During the case it became abundantly clear that the doctors training and supervision was woeful. As a result, consideration was given to whether the hospital trust should be prosecuted for manslaughter. A decision was taken against that, but it was prosecuted under the Health and Safety at Work, etc. Act 1974 and pleaded guilty. That is my understanding; I was not involved in the latter parts of the case, so my memory of it may be faulty.
The case had nothing to do with bringing in a patient off the street and having to make quick life and death decisions about their carethe circumstances that the Government may have had in mind when they included NHS bodies in the definition. The case was about serious failings of care that could and should have been prevented, in a hospital in which there were serious management failures.
According to my reading of clause 7, it would be impossible to prosecute an NHS health trust for such failures. It would be able to say, The patient was facing emergency circumstances and worse serious harm and injury; we are therefore exempt. Is that what the Government intend? I do not think that it would ever be possible to prosecute a health trust when a patient died. The other problem is that unless a hospital kills a patient who is otherwise pretty much 100 per cent. fit, it will always say that it was an emergency because the patient was at risk of serious harm.
The problem is very real. I should make clear that I sought to delete subsection (2)(e) and (g), but on reflection paragraph (g) seems to involve a very different set of facts, although it refers to the NHS. I assume that it suggests that an organisation providing services for the transport of organs, blood or equipment could not be prosecuted if, say, blood were taken to the wrong hospital by mistake and the patient did not get it. Those would be the only circumstances in which the situation could arise. The emergency nature of such services is different and the argument is different.
However, we are effectively giving the relevant NHS body, as defined in clause 7(3)(a), (b) and (c), pretty much blanket protection against killing a patient in its care. Is that what the Government or the Committee want?

Edward Davey: I share the concerns of the hon. Member for Beaconsfield. Any ordinary person reading the clause, given how it hangs together, would take the view that an awful lot of NHS activity will be exempt. I am shocked by that reading. I hope that the Minister will tell us that our understanding of the clause is completely wrong. If so, he needs to tighten up the wording. Given the words emergency services, I had thought that we might have seen specific mention of accident and emergency and NHS ambulance trusts, for example. I did not expect every single type of NHS trust to be listed.
It may be that the Government had in mind particular aspects of health services that are related to emergency. However, the exemption seems rather broad, and I do not think that they have targeted it in the way that most people would have expected. The hon. Gentleman gave an example. I am sure that, like me, other hon. Members have frequently been concerned at how junior doctors and junior NHS staff often end up with their heads on the block because there has been a failure resulting in someones death, yet the trust and the management do not seem to get any comeback. If that situation were changed, and if there were the possibility of prosecuting organisations more simplyas the Bill, without these exemptions, would permitthat could benefit our NHS staff. They may be concerned about the current situation, under which they face prosecution. If I were a member of the family of a patient who had died, I would rather take an action against the organisation than against the individual members of staff, and I would like the law to enable that.

Michael Fabricant: The required level of evidence is a lot higher for criminal actions such as those that we are discussing. If there were a subsequent civil action in which the relatives of the deceased sought redress from the hospital, it would be easier for them to pursue that in court if there had already been a criminal conviction.

Edward Davey: The hon. Gentleman makes a valid point, and I hope that the Minister will reply in some detail, because if my interpretation and that of the hon. Member for Beaconsfield is correct, the Bill is proposing quite a significant change. I think that the Ministers colleagues would be worried about that and would find it difficult to explain to their constituents, were they backing a change of the breadth that we fear.

Gerry Sutcliffe: I am grateful to the hon. Gentlemen for the way in which they have commented on the amendments, and for trying to tease out the Governments thinking. I am an ordinary person, and I can assure the hon. Member for Kingston and Surbiton that on my reading of the Bill the exemption is very tight indeed, though he may want to question my definition of an ordinary person.
The hon. Gentleman spoke of the difficult situations in which people find themselves when a loved one has died and when the cause is uncertainwhen it could be the result of either the individual practitioners treatment or of system failure within the organisation. That is one of the reasons why we have had Crown immunity removed.
It was said that there may be occasions when it could be appropriate to pursue action against both organisationsagainst a grossly negligent individual and against the organisation if a link could be made to gross negligence on its part. However, the exemption is drafted as it is to take account of emergency situations. The effect of subsection (2)(e) is to exempt NHS bodies, including hospital and ambulance trusts, from the offence in relation to the way in which they respond to such emergency circumstances. That would mean that trusts would not face criminal prosecution in relation to their management of response to an emergencythe number of medical personnel attending, the time taken for ambulances to arrive, or decisions about patient prioritisation by staff on the ground. Trusts must balance finite resources against competing demands when responding to emergency circumstances. We do not believe that it is right to impose a criminal liability for the consequences of those decisions.
The exemption is not intended to, and does not, extend to medical treatment. The relevant NHS trust should not face a prosecution for corporate manslaughter in relation to the time taken for the ambulance to arrive or the number of personnel sent. However, if a patient died because an ambulance worker was so poorly trained in resuscitation techniques that it amounted to gross negligence on the part of the NHS trust to allow him to perform that role, it would not be exempt.

Dominic Grieve: I am pleased to hear the Minister say that. Perhaps I am wrong, but reading how the clause is worded, I am not persuaded that he will achieve that outcome. Even if he is correct, there is a grey area when the emergency circumstance ends and the ordinary treatment in the hospital begins. Even if the hon. Gentleman wants to pursue that line, we need greater clarity about where it lies. At present, it is completely unclear.

Gerry Sutcliffe: I shall continue and hopefully reassure the hon. Gentlemen. If I fail to do so, I am sure that we shall return to the matter. We are certainly not attempting to exempt NHS trusts in circumstances that are not emergencies. The difficulty would be to draw up a credible, detailed set of circumstances. The hon. Member for Beaconsfield is far more expert than I at understanding legal framework and how such a list could be drawn up. As for the exemptions, the Scrutiny Committee told us to be clear about what we put inthe Bill.

Edward Davey: Will the Minister give way?

Gerry Sutcliffe: Let me go a little further. I might help the hon. Gentleman. We tried to set out circumstances in which trusts would not be exempt. I have given examples of when they should be exempt. I emphasises that negligence would have to be attributable to the relevant NHS trust and not solely to the individual administering the treatment. That is where the balance lies.
Whether or not ambulances owe a civil duty of care in terms of responses to emergency circumstances is open to question. They have been held to owe duties of care in some situations. For example, in the case of Kent v. Griffiths, the ambulance service was found to owe a duty of care in relation to a delayed response to a 999 call made on behalf of a named individual. However, Lord Woolf, in making his judgment in that case, made it clear that such duties may not always arise. For example, when a delay was due to no ambulance being available or to a conflict of priorities, the imposition of liability might not be appropriate.
If amendment No. 132 were accepted, NHS trusts would be left in some doubt about their liability on corporate manslaughter, and that is not desirable. It would risk trusts adopting defensive practices that would not be in the best interests of the public.
The purpose of clause 7(2)(g) is to ensure that an organisation transporting blood, organs, personnel or equipment by arrangement with a relevant NHS trust should benefit from the same exemption as the trust, but only if it were operating in emergency circumstances. The exemption puts those bodies in the same position as an NHS trust when, for example, there is a need to transport medical personnel to the scene of an accident or an organ to a person in need of a transplant in emergency circumstances.
When a trust has arranged for another body to carry out an emergency response on its behalf, we do not think that criminal liability should attach to one body, but not the other. To allow that might risk reducing the availability of such alternative forms of transport to NHS trusts, which would not ultimately be in the public interest. The difficulty that the Committee faces is that the Government, in trying to be transparent in how they regard the exemption, have put in the Bill how they want to progress. The amendments would remove the exemption and do not accept that there are certain emergency circumstances in which the services might find themselves. That dilemma faces the Committee today. My balance would be to support the Government position unless the Opposition can come up with a better remedy than just removing the exemption. Hon. Members have said in their contributions that they accept that there are such circumstances, but they feel that the exemption is too wide and want to narrow that exemption.

Edward Davey: The whole point of this debate is that the Government are claiming credit for eliminating Crown immunity, but there is a real danger that they are just bringing it in again by the back door in the same Bill. Let me give an example. If one of my constituents is suffering from acute appendicitis, with the danger that it could turn into peritonitis, which is life-threatening, would the Minister consider that to be a serious illness under the terms of the clause?

Gerry Sutcliffe: I say this without medical expertise, so I hope that the hon. Gentleman will give me the benefit of writing to him if I am making a grave mistake, although I do not think that I am. That is medical treatment; it is about the treatment of that condition. We are talking about emergency circumstances. I have sparked a much wider debate. I give way.

James Brokenshire: Perhaps the issue is the definition of emergency circumstances. Appendicitis, or indeed any serious medical condition, would appear to be circumstancesthe word circumstances would extend to an illness or medical conditionthat are present or imminent. I think that that is the issue that we are struggling with, and which lies behind the amendment. Will the Minister at least reflect on the issue that has been highlightedthe use of the word circumstances in that context? It could extend not only to the response to an emergency or an accident but to an existing medical condition.

Gerry Sutcliffe: I thank the hon. Gentleman for his intervention. I shall try to go a bit further.
The measures are not intended to extend to the hospital environment. A person who suffers a cardiac arrest on a hospital ward is in an environment where expert help is at hand. The patients circumstances, understood in terms of the patients environment, are not part of the emergency and do not in themselves threaten to worsen the patients condition, although the condition might itself be an emergency. By contrast, a person suffering a cardiac arrest at home is in extra danger because of the absence of expert help.
We think that the Bill is drafted to that effect, and hope that we can help hon. Members accept the spirit of what we are trying to say. The hon. Member for Kingston and Surbiton does not accept the spirit, because he wants to argue both ways. He wants to argue that we should not try to clarify the position, as we have been doing, in light of what the scrutiny Committee says.
We are trying to make it clear to the trusts what their liabilities are. I believe that it is clearly set out. Using the amendments to remove the exemptions would be using a sledgehammer to crack a nut, because hon. Gentlemen have said themselves that they want to consider the way forward. That might be the best way for us to proceed. The hon. Member for Beaconsfield said that it was a problem amendment. Therefore, let us agree to return to the matter later, because I do not think that we will reach agreement at this point. With respect, I ask the hon. Gentleman to withdraw his amendments.

Edward Davey: The Minister accused me of wanting to have it both ways, so I shall make absolutely clear what I am suggesting. The Governments policy decision to remove Crown immunity in many circumstances received a cross-party welcome. On Second Reading, Members from all parties welcomed it. Our concern in this debate is that with respect to the NHS, it appears that the Government are reinstating Crown immunity in quite a wide set of circumstances, going against the pledge that they made in 2000. That policy decision has taken six years to implement, and it looks like it will not be properly implemented if we allow the clause to pass.
I listened to the Minister when he tried to define emergency circumstances and tried to convince us that they were very unusual, but I was not convinced. If he wants to get rid of crown immunity, except in a small set of cases that are generally to do with the actions of the emergency services, in order to give them a degree of extra cover so that they do not become risk averse, he will have to come back with wording that is much narrower and tighter than that before us. I am trying to help the hon. Gentleman reach his stated policy decision, so as always I have been constructive.

Dominic Grieve: We have had a fascinating debate. I am sorry if the Minister has felt slightly harassed by it. Before withdrawing the amendment, I will attempt to summarise the issues. The Government have set out this regime in clause 7 because they want to protect emergency services when they have to take quick decisions at the scene of an emergency about how a patient or patients are prioritised and looked after in the context of the emergency.
It is worth making the point that we might be making a mistake in doing that. As the Minister rightly said, it is possible for an ambulance crew to behave in a way that is grossly negligent, and which might be due to a management failure. For example, if ambulance men spend their time having cups of tea in a cafĂ(c) rather than sitting in the cab of their ambulance and so fail to save somebody on a routine emergency or to go to someones house, and it turns out that the management of the ambulance trust knew very well that this was a regular practice among numerous ambulance crews and had done nothing about italmost a standard health and safety matterthe management will notbe capable of being prosecuted for corporate manslaughter by virtue of this arrangement. That is one end of the spectrum.
The Government justify that by saying that what they are really aiming at is the scene of a multiple car pile-up in which urgent decisions have to be takentriageand some people may even be left to die because there are not enough people there. Help is prioritised and given to those who are most likely to recover. That is one end of the spectrum. The other end is to say that the Government are right in what they are trying to do, in trying to protect emergency services. The issue then becomes one of definition. The Minister used the expression treatmenthe said this is not designed to cover treatment. However, the problem is that one starts to treat a patient from the moment that one lays hands on him and starts to clear his airway at the roadside. If the treatment is being carried out correctly, it should be a seamless process from the time that he is first picked up to the time that he is taken into hospital, operated on and hopefully ends up in post-operative recovery, getting better on a ward.
As drafted, there is a total lack of clarity as to where the cut-off point lies and, as with so many other things, it might have the law of unintended consequences. The Minister will forgive me if I touch on a controversial subject, that of the targets set for dealing with patients in accident and emergency departments. There has been plenty of anecdotal evidence to show that in order to meet targets, accident and emergency departments have tended to say that they have looked at a person when they have actually sent them up to a ward in which they are looked at by a specialist. It is treated as a patient having gone through the A and E department and looked at by the mainstream consultant. The poor patient then has to wait another hour and a half before he is seen but he has been crossed off the four hour target.
Therefore, we have to be rather careful. Is it being suggested, for example, that it is treatment in an accident and emergency department, which by its very name has the word emergency attached to it, that would be exempt, but that the moment that the patient is passed to a mainstream department of a hospital, that is ordinary treatment? That is a wholly artificial definition. Is it the case, as the Minister seemed to be hinting, that we are dealing here with only those events that take place outside the hospital environment or the surgery? In which case, that is certainly not spelt out in the Bill and is also a rather artificial distinction.
This issue has to be reconsidered. We will come back to it on Report if the Minister cannot introduce something better. There is an interesting philosophical discussion calling into question the entirety of the Governments structure in relation to emergency services. That is also linked to the police and, to a lesser extent, the military and, perhaps, to the exemptions for public authorities generally in clause 4(2). Leaving that to one side, even if we are dealing merely with the detail of what the Government are trying to achieve and trying to get it right, my view is still that at the moment the measure is opaque. If it is opaque, it will leave hospital health trusts and everybody else unable to know when the cut-off comes. I suspect that prosecutions will be brought where the legal definitions will have to be hammered out in judges rulings, because such rulings will be about whether or not the duty of care is owed in a particular circumstance within the scope of the Bill.
This state of affairs may be inevitable, but it is unsatisfactory. I hope that the Minister will reconsider the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 122, in page 5, line 26, at end insert
( ) Any duty of care owed in respect of the carrying out, or attempted carrying out, of a rescue operation at sea in emergency circumstances (or circumstances believed to be emergency circumstances) is not a relevant duty of care unless it falls within section 3(1)(a) or (b).
( ) Any duty of care owed in respect of action taken
(a) in order to comply with a direction under Schedule 3A to the Merchant Shipping Act 1995 (c. 21) (safety directions), or
(b) by virtue of paragraph 4 of that Schedule (action in lieu of direction),
is not a relevant duty of care unless it falls withinsection 3(1)(a) or (b)..[Mr. Sutcliffe.]

Clause 7, as amended, ordered to stand part ofthe Bill.

Clause 8

Child-protection and probation functions

Dominic Grieve: I beg to move amendment No. 134, in page 6, line 4, leave out subsection (2).
We return to a similar problem area. I am not persuaded that my amendment, which would delete subsection (2), is appropriate, except that I should like to debate the extent to which child protection and probation functions are exempt. It may be arguedyou will have to make a ruling, Mr. Galethat we will effectively have a clause stand part debate. We will have to see how matters progress.

Roger Gale: Order. I have made it plain and will do so again that I am more than happy to have a stand part debate at the beginning of a clause. In this case there is only one amendment to debate and if the hon. Gentleman wants a stand part debate he may have one.

Dominic Grieve: I leave it in the hands of the Committee. I simply wanted to say that, in tabling the amendment, I was not 100 per cent. sure that it achieved its intended aim.
The issue in clause 8 is similar to one we have encountered previously. Do we wish to exempt child protection services and probation functions from the operation and scope of the Bill? Organisations have a duty of care to their employees or premises, but only underclause 3(1)(a) and (b). However, that removes any duty of care by child protection or probation services towards their clients or, in the case of probation functionswhich is slightly more problematical and why these two things need to be considered separatelyin respect of the wider public being protected from their clients.
I acknowledge that this is a difficult subject. One has only to consider the Victoria ClimbiĂ(c) case, for example, to see that the most serious kind of criticisms have been made of how social services handle child protection. Indeed, I would go further than that, because of my experience as a constituency MP. I should say that I deal with various local authorities and I should not like to suggest that I am identifying a particular one. After nine years as a Member of Parliament I have ended up with a jaundiced view of the ability of social services to care for children in care at all. There seems to be a depressingly familiar ring about the word failure in respect of the protection, nurture and help given to children in care, andin a case as extreme as that of Victoria ClimbiĂ(c)in respect of protecting such children from death. I grant that the field is difficult and challenging for those working in it. However, is it right that not the social workers themselves but the managers, who are often to blame for not having proper systems in place, should be exempted in a blanket way from corporate manslaughter prosecution? I have deep anxieties about that.
I think that I can anticipate the Ministers arguments, and in some ways they may be the same as those given by the police: it is wrong to expose people operating in challenging environments to prosecution. However, in a sense, the argument is circular, because the Minister says at the same time that only in the most extreme cases will people be prosecuted anyway. Why, then, do they need special protection? Does the Minister think that their decision making would be inhibited? For me, there is a question mark about that, because at the end of the day individuals will not be going to prisonorganisations will be fined.
I wonder whether there is not a better way of dealing with the issue. I wonder whether child protection and probation functionschild protection functions particularlyshould not be removed from the exemptions altogether. Probation functions may be different. I suppose one could argue that it would be proper to have a fetter in respect of children in care misbehaving and causing death or somebody subject to a probation supervision killing somebody. In such cases, I would have sympathy with the Minister.
However, as far as the protection of the client groupchildren or those subject to probationis concerned, I am more anxious, particularly in respect of children because of the extra level of responsibility that we owe them generally in our society. That is different in nature and quality from that which a probation officer owes a person subject to probation supervision. With that in mind, the Minister may be able to articulate why the Government think the very broad exemption is needed.

Edward Davey: My concerns are similar to those of the hon. Member for Beaconsfield. My experience of the social services run by Kingston council has been excellent, and when I have had to deal with other social services in nearby authorities, I have been concernedat the fact that they are nowhere near as good as my local service. I have had experiences similar to those mentioned by the hon. Gentleman, but I am sure that he would agree that his comments are not true of all social services; I have seen some do superb work.

Dominic Grieve: Let me make the position clear. I hope that I picked my words with attention and care. I agree entirely that there are social services that operate exceptionally well in a challenging environment; I used to do care work for exceptional social services in a number of London boroughs. Those in my own county are good, but those of some adjacent local authorities, which have a role in looking after some of the children in my constituency, have at times caused me grave anxiety.

Edward Davey: I am sure that the hon. Gentleman is pleased that I gave him the chance to clarify that. I do not demur from his overall point; no one would who had read Lord Lamings conclusions about the agencies in the Victoria ClimbiĂ(c) case. Let us remember that social workers, nurses, doctors and police officers were involved in that case. Lord Laming described their failings as a disgrace. Given that sort of finding in a major public inquiry, it seems odd that we should exempt such services as the Government have done. Given that very recent experience, I really do not understand the Governments thinking.
I think that I am right in saying that the clause was not in the draft Bill and was therefore not considered by the Joint Committee. It is therefore incumbent on this Committee to ask some searching questions, because none of our colleagues had a chance to consider the clause during the pre-legislative stage.
I am drawn to the explanatory notes, which also do not suggest precise thinking. In relation to clause 8, they state:
It is unlikely that such bodies
child protection services and the probation services
would owe a duty of care should a person be killed in connection with such activities (for example, if a child was not identified as being at risk and taken into care and was subsequently fatally injured). This clause makes it clear that such circumstances are not covered by the offence.
That suggests that the Government want to ensure that there is no liability if a social services department fails totally to identify a risk to a child. If that is the case, they need to define the circumstances more carefully. Given Lord Lamings findings, there is no doubt that social services should have identified the risk in the case of Victoria ClimbiĂ(c). I am worried that the clause creates a blanket exemption that will not enable bodies to hold social services to account properly when they fail miserably.
I appreciate that the area is particularly difficult, but let us remember who will make such a case. Presumably it will not be the parents, and it might not be the guardians. Who will make the case? It might be another family membersay, a grandparentwho is concerned that there was a failure, so we also need to pay attention to the dynamics of how the process will work.
I hope that the Minister will give a rather greater explanation than the explanatory notes do and that he will reflect on our comments, given the lack of scrutiny that the proposal has received to date.

Tony Lloyd: Ever anxious to help my hon. Friend the Minister, I too share the concerns that have been expressed, but, although I understand the arguments that the hon. Member for Beaconsfield made about the probation service, I think that, with regard to the application of the Children Act 2004, we ought at least to examine carefully whether we have got the balance right in the Bill.
We know as a matter of fact that although there are many examples of good child care in our social services, there have also been some awful examples, where the questions why things went so tragically wrong have rightly been debated. That is particularly true of the Victoria ClimbiĂ(c) case, but it is true of other cases too. With that background, Parliament must provide a legislative framework that establishes where the boundaries of legitimate care should lie and where there might need to be exemptions from the duty of care under the Bill, in order to give proper protection to those working in the difficult field of child care.
My concern is the same as that which has already been expressed, namely that the boundaries in the clause seem to have become much wider is necessary to give proper protection to those working in child care. Had the Bill been on the statute book at the time of the Victoria ClimbiĂ(c) tragedy, it is arguable that corporate manslaughter legislation might have been an appropriate legislative vehicle for prosecution of the authorities involved, but subsection (2) as drafted could had have the consequence of putting that possibility out of reach.
I know that that is not what my hon. Friend the Minister intends. I simply warn him that we face the potential for long-term public ridicule if, having established the legislation with good intention, we found that it could not be used in precisely the circumstances in which we would want it to be used. Hopefully, my hon. Friend the Minister can help the Committee and alleviate a common concern. He may have good and appropriate answers, but I hope that he can register the fact that, at present, it seems as though the provision may have been drawn a little too broadly.

Gerry Sutcliffe: I welcome the debate and the consistency of the argument. The same points have been made repeated: the clauses are too wide and miss the mark of what we are trying to achieve. I am grateful to my hon. Friend the Member for Manchester, Central (Tony Lloyd) who said that we did not intend that to happen; clearly it is not. We have cause to look again at some issues, and I shall come back to them later. We have tried to make the case in relation to the police, and the fire and emergency services, but I accept and acknowledge the services dealt with in clause 8 are more difficult to deal with, if that is possible, because of the issues involved.
Members of the Committee have accepted the difficulty of dealing with children at risk in extraordinarily difficult circumstances. Local authorities and their partners do everything that they can to identify and meet the needs of children at risk of harm, but their success cannot always be guaranteed. Determining the best interests of a child requires a careful balancing of many factors. The courts have had real difficulties deciding what duties of care are owed by local authorities in such circumstances. They have found that it may well be inappropriate to subject a local authority to a duty of care in respect of decisions relating to taking children into care. That would, of course, mean that the offence would not apply. That is the sort of activity in which public policy and exclusively public function exemptions are also likely to have a role.
However, we do not want to leave residual uncertainty. Public authorities must be left in no doubt about their criminal liability. I have tried to be consistent throughout. I know that the hon. Member for Kingston and Surbiton (Mr. Davey) thinks that we have removed Crown immunity with one hand, but brought it back in with the other, but that is not our intention. We want to make sure that we take a significant step forwardthat services are delivered in the way that we would expect and that public authorities know what their criminal liabilities will be. We do not want to encourage them to become risk averse, particularly in the field of child protection, with the possibility that children could be removed from their families unnecessarily on the one hand, or that the authorities might be less proactive in seeking out and tackling child abuse and neglect on the other hand.
The offence is not aimed at individual decisions and would apply to the organisation and management of child protection activities. However, we do not want the systems and procedures for making such decisions to be affected by the fear of investigation and prosecution. That could create an over-cautious view, affecting the fine balance that is needed in such decisions.

Edward Davey: Will the Minister give way?

Gerry Sutcliffe: I want to pursue the points that have been made. I accept that the hon. Gentleman is consistent in his efforts to challenge me, but let me try to make the case and we can see where that leads.
We want to make sure that the decisions that are taken are advantageous and good for children and families. [Interruption.] I will give way first to the hon. Member for Kingston and Surbiton, after which I shall give way to the hon. Member for Beaconsfield.

Edward Davey: The reason why the issue of risk aversion does not apply to child protection services is that the decisions that are made on withdrawing children from their families go before courts anyway. External people are overseeing the decisions made by social workers and their partners. We already have a check, so the Minister should not worry that, by applying the offence to child protection services, it will make them any more risk averse or change the incentive structure. They rightly already have overseeing bodies, primarilythe courts.

Gerry Sutcliffe: I accept what the hon. Gentleman is saying. The bodies and the framework that are in place for protecting and making local authorities accountable are helpful in such circumstances. However, consistent with the arguments that I have made in respect of other services, risk aversion is an issue that we have to face.
The hon. Gentleman is correct about the accountability framework for local authorities in child protection work. When children are killed, and abuse or neglect are suspected, serious case reviews are commissioned by the local safeguarding children board. Those reviews look in detail at the involvement of services with a child or young person. The focus is on how to learn lessons for the future. There is also a statutory requirement to report the deaths of children in local authority care to the Commission for Social Care Inspection and to the Secretary of State. In very serious cases of failure a public inquiry may be held.
Those are all rigorous, thorough and very public forms of accountability whose inquisitorial format allows a full picture of the failings that led to a death to emerge. All of the inquiries that I have described produce recommendations which drive improvements in the provision of services. That is the sort of accountability that the public services neednot prosecution under the criminal law.

Dominic Grieve: Does the Minister think that there might be an argument, in child protection cases, for distinguishing between, on the one hand, decisions to make a place of safety order or take a child into care and bring care proceedings and, on the other hand, decisions taken when a child is actually in care? Once a child is in care the public rightly take the view that there is a special responsibility. Is there not an argument to be made that if a child dies while in the care of a local authority the exemption should be lost?

Gerry Sutcliffe: When I have concluded my remarks the hon. Gentleman will understand that I believe that there are indeed areas that we need to consider. As the amendment is a probing one, there are issues to which we need to return. However, I am trying to set outthe Governments consistent approach on when exemptions are appropriate.
The hon. Member for Kingston and Surbiton asked about the lack of pre-legislative scrutiny of the provision. As an exclusively public function, child protection was excluded under the terms of the draft Bill. It was addressed, but there was no explicit exemptionthat is the difference.
The exemption is not intended to exclude from the offence the services offered generally by local authorities to children and families. Once a decision has been taken to provide a service or to meet an assessed needfor example, home help for the parent of a disabled child, or accommodation for a child who is being looked aftermanagement failure in providing or commissioning those services should be covered. Clearly, some decisions will be subject to the exemption for public policy decisions, such as decision on the range and level of services to be provided. Some services might be exclusively public functions, such as the review of plans for the future care of a child who is being looked after. However, the intention is that, subject to those limits, the offence should apply generally to services provided to children and families. Our intention is to focus on the particular difficulties raised by child protection responsibilities.

James Brokenshire: An example springs to mind and I should be grateful for the Ministers clarification of whether it would fall within the scope of the exemption. I am thinking of a decision to place a child who has been taken into care with foster parents. If systems were so flawed and manifestly appalling that checks had not been carried out on the foster parents, and if it were later discovered that they had committed offences against children in the past, would that gross failure be captured? That is the type of scenario that we are all keen to avoid. It may need to fall under the sanction of the Bill, to ensure that appropriate steps are taken to ensure that it does not happen.

Gerry Sutcliffe: The hon. Gentleman is correct about our intention to cover such a situation. The question is whether the words in the Bill meet that intention. In the circumstances he describes, I would not want the exclusion to apply.
I acknowledge the Committees direction of travel, albeit I do not agree with it 100 per cent. None the less, I recognise the need to examine the exemption to confirm that it is adequate. My hon. Friend the Member for Manchester, Central said that we do not want to get into the ridiculous position of trying to achieve the Bills aims and objectives, but making a gross error in terms of exemptions. I do not see it that way. It is right for us to pursue the exemptions in the way that we have. The exemptions that we want, particularly on child protection responsibilities, are important. However, I would be happy to review whether we can frame the legislation in a more appropriate way, so that we do not cause the problems that have been described.
The hon. Member for Beaconsfield discussed probation service issues that are similar to those that we discussed in respect of the prison service. I hope that Committee will acknowledge the Governments intentions and what we are trying to achieve. I am prepared to review the clause in the spirit of trying to be a bit more precise about what the exemption covers, and I hope that that guarantee will allow the hon. Gentleman to withdraw the amendment.

Dominic Grieve: I am grateful to the Minister for his comments, and I will beg leave to withdraw the amendment. I fully acknowledge that this is a difficult area. At the risk of repeating what I said earlier, if there is a way to compartmentalise the different duties, the point to centre on may be the difference between the obligations owed to a child once it is in care and those owed to a child who is outside of care. I accept, however, that some would argue that those distinctions are rather artificial. After all, if a local authority is weighing up whether a child should go into care, one would hope that its decisions would be as sensible and its duties the same as if it actually had the child in its care.
We should consider that we are sending a message to the public about the duties incumbent on public authorities. Once the decision to take a child into care has been made and the court process has been gone through, what will happen if the child subsequently dies because of gross management failures within the organisation? My hon. Friend the Member for Hornchurch (James Brokenshire) gave the example of a child being placed with foster parents who kill the child. What if it could be clearly shown that there were danger signs, or if the child was allowed to visit its natural parents when there had been warnings that that might be dangerous for the child? I grant that those are still difficult areas for local authorities, but I believe that the public will be shocked by the idea that if there are gross negligence failuresthat is what we are talking about, after allit is not possible to prosecute the organisation concerned.

Edward Davey: While I believe that the distinction that the hon. Gentleman makes may well have a great deal of power to it, and I hope that the Minister will reflect on it, let us remember that his distinction would not have catered for the Victoria ClimbiĂ(c) case.

Dominic Grieve: I entirely accept that, and that is why there is still an argument that the subsection should not be there at all, although, if I understand the wording of the Bill, we would have to do more than remove just subsection (2). We would also have to remove the public authority exemption to local authorities in child care cases and the probation service, although I have always said that that is a rather different issue. However, we must remove subsection (2), which applies to local authorities in child care cases. I would be willing to consider whether we should do that on Report.

Ian Stewart: It is good to see you in the Chair, Mr. Gale. In view of what the hon. Gentleman, in his deep concern about children in some social services situations, has just described, I put it to him that if there were such a serious breach, and if there were no exemption, there could be case for imprisonment.

Dominic Grieve: It is certainly technically possible. For example, if a social worker were to decide to allow a child who was in the care of the local authority to visit its natural mother, even though the social worker knew from the dossier in front of her that the natural mothers boyfriend was a serious risk to the child, and if, having agreed to the home visit, she did not then put in any supervision but decided to go to the cafĂ(c) down the road to have a cup of coffee before picking thechild up two hours later, and the child on the home visit was murdered by the boyfriend, I have to say that I think that there might be an argument for a gross negligence manslaughter prosecution of the social worker under the existing law, albeit that that is a pretty controversial area in which to start to become enmeshed. Technically, I do not see that that would be impossible.
I had some difficulty following the hon. Gentlemans argument about the introduction of personal liability for imprisonment in this context and I am not sure that I agree with him.

Ian Stewart: The hon. Gentleman is helping me and others to sort out our thinking on this complex issue, but let me press him on the next stage of the process that he outlined. I shall use his words. If there was gross negligence in that there was a systemic failure that would be the responsibility of the organisation or corporation, does it not follow that there should be at least the ability to consider the most serious sanctionthat of imprisonment?

Dominic Grieve: No, is the answer. I disagree with the hon. Gentleman. As we debated earlier, I expressed my personal view that the Government were right not to try to introduce personal sanctions on managers for systems failures.
Manslaughter against individuals still exists as a charge, and we have to accept that we have created this offence to deal with the specific problem of prosecuting corporate bodies and that if one starts immediately to say that because the corporate body is guilty that should lead inexorably to punitive sanctions being placed on individuals in senior management roles, that is a step too far. It gives rise to a serious potential for injustice. I said that earlier, and however emotive the topic that we are discussingit is very emotiveit does not change my view that the correct thing to do in such circumstances, if the breach by the individual is so grave, is that they should be prosecuted for manslaughter under the existing law. I do not think that one should say that the systems were so bad that someone should go to prison because they were part of the process by which those systems were bad. In any organisation, system failures are rarely down to one individual. A serious risk of injustice starts to arise when someone ends up carrying the buck for failures that should be further spread out.

Ian Stewart: At the risk of antagonising the Minister[Interruption.] Yes, and the Whip. I put it to the hon. Gentleman that the question will still arise in the minds of citizens of this country of who is responsible. We cannot go past that without giving an answer. If we have an answer, we must also address the spectrum of sanctions.

Dominic Grieve: I agree with the hon. Gentleman that, following episodes or incidents of a kind that give rise to great disquiet, such as the death of any human being, because of what appear to be systems failures, the public become angry that individuals heads are not rolling. The criminal law, like anything else, can be a fairly blunt instrument and one should beware that one is not cutting off the heads of people who do not necessarily deserve to have them chopped. On the whole, in such settings, unless one can show specific criminal culpability at a level that would justify a manslaughter charge against the individual, I am reluctant to see people sent to prison for failures that might be due to negligence. We have a long history in this country of not jailing people for being negligent. We jail them for being grossly negligent, but not for straight negligence. That is a pretty good distinction to hang on to, and if we lose sight of it I fear that we will end up with a system that appears to be unjust. Perhaps in the short term members of the public will feel assuaged by the sight of a manager being sent to prison, but in the medium term it will not have a good impact. First, it will not succeed in changing the behaviour of managers, because we live in a world where all human beings make mistakes. Secondly, it is potentially unfair, because it is rare that one individual is to blame for a systems failure. If one person is wholly to blame, however, it is a good reason for prosecuting him for manslaughter in the first place.
Having been briefly diverted from what I was about to say, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clause 9

Factors for jury

Dominic Grieve: I beg to move amendment No. 137, in page 6, line 33, after death insert or serious injury.
Amendment No. 137 seeks to provide that thejury should consider serious injury as well as death. Clause 9 is about the factors that the jury must take into account. Amendment No. 136, which I did not move, was linked to earlier amendments about whether the jury should decide everything, but it is no longer relevant because we have already had that debate.
Under subsection (2), the jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation relating to the alleged breach and, if so, how serious that failure wasand, as things stand at the moment, how much of a risk of death it posed. An old trite saying at the criminal bar is that murder is grievous bodily harm with a corpse. The truth is that the risk of serious injury and the risk of death cannot be disentangled one from the other.
When deciding or assessing risk, organisations should consider the risk of serious injury rather than the risk of death. That is certainly how it has always appeared to me to be in health and safety practice. I was therefore a little surprised to see that subsection (2) concentrates on the risk of death rather than the risk of serious injury or of the two together. It seems to me that negligence arises once one starts to ignore serious injury, because death results from serious injury.
It is a simple issue. The Minister may be able to persuade me that the wording of the Bill is perfectly adequate, but I nevertheless move the amendment for the Committees consideration.

Gerry Sutcliffe: In the draft Bill, we proposed that the jury should be required to consider the risk of death or serious injury when deciding on the question of whether a breach was grossly negligent. When giving evidence to the scrutiny Committee, Sir Igor Judge said that to include the risk of serious injury would mean that the test moved away from the current law. A number of cases have considered whether the test for manslaughter should consider the risk of both serious injury and death, and it has been decided that it should be risk of death alone.
It is hard to envisage circumstances in which a high risk of serious injury existed in which there was also a risk of death. If someone has died, there clearly existed a risk of death. However, we think it right that the jury should be asked to consider management failures against the risk of death that was posed, given that the offence will be one of homicide. We do not wish to suggest a different test from that used under the current lawnor, as the hon. Gentleman will appreciate, do we want to create a bonanza for lawyers.
If the jury considers the risk of serious injury to be relevant, it will be able to take that into account in appropriate circumstances. Subsection (4) ensures that the jury will be able to consider any other matter that it considers relevant, including the degree to which the activities in question posed a risk of serious injury.
I hope that that gives sufficient explanation of why we included the risk of death alone in subsection (2), rather than the risk of death and of serious injury. I hope that the hon. Gentleman will be satisfied with that and will withdraw the amendment.

Dominic Grieve: Far be it from me to question the reasonings of Sir Igor Judge. I was influenced by my experience of health and safety at work law, which centres on issues of injury and risk rather than the result of those, which may be death. However, the Minister has persuaded me and subsection (4) appears to cover the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

Clause 10

Power to order breach etc to be remedied

Tony Lloyd: I beg to move amendment No. 83, in page 7, line 16, after convicted, insert or is found not guilty.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 84, in page 7, line 18, at end insert or.
No. 85, in page 7, line 19, leave out to have resulted from that breach and.
No. 86, in page 7, line 26, at end insert
and may include reference to a person or persons, who are to be responsible for the specified steps being taken.
No. 110, in page 7, line 32, at end insert
and a person referred to in an order in this section may be guilty of contempt, if the specified steps are not taken by the organisation in accordance with an order under this section.

Tony Lloyd: There is a division of labour, but I think that Labour is united on this.
This group of amendments comes under two separable headings, but it might help the Committee if I started by talking about the Marchioness disaster. Committee members will recall that the salient facts were that in the early hours of the morning two boats collided on the River Thames. The collision happened because there was inadequate visibility in the boats wheelhouses andI recall it wellthe skipper of the Bowbelle, which rammed the Marchioness, failed to put a proper look-out on the bow of his boat, so a preventable accident was not prevented. The skipper was charged under the manslaughter laws with, I think, gross recklessness and manslaughter. The result was that, although the charges went to court, the case was not proven and the skipper was found not guilty on two occasions.
That case is important to bear in mind in respect of amendment No. 83, under which the court is invited, rather unusually, to take remedial action even if the defendant corporation is found not guilty. It is unusual to apply a remedy against an organisation that is found not guilty. Most people would say, in a common-sense way, that in the specific circumstances of the Marchioness, it is clear that a matter that could have had remedy went wrong. It would be ridiculous for us not to seek to provide a remedy, having established that such a remedy existed, and it would be even more ridiculous if we had no power to order the proper remedy because the charges were not provable in court against an individual or a corporation.
We know that cases have failed in court and not guilty verdicts have been given. In the case of the Marchioness there was no remedy. Under the clause as it is presently worded, it would have been impossible for the court to order proper remedy at a later stage. That is impact of amendment No. 83, which is important in its own right.
The purpose of amendments Nos. 86 and 110 is to recognise that an order made under the clause is made against an organisation or incorporated body. However, it is a matter of practical fact, and almost common sense, that for remedy to be actioned individuals must action it. There must be individuals in the incorporated body who will take those actions. If the incorporated body fails to take remedial action, there will be remedy against it. However, in a rather different way from the earlier debate between my hon. Friend the Member for Eccles (Ian Stewart) and the hon. Member for Beaconsfield about individual liability, we are seeking for individuals to be named by the court as those in the incorporated body who have the responsibility and duty of ensuring that that remedy is applied. Failure to act and to bring those remedies forward would result in individual liability, because where a remedy is ordered against an individual it makes sense for a penalty arising from a failure to act in that way to be against that individual.
There are two quite separate arguments about this group of amendments. Those that concern the first part of the clause are intended to ensure that the remedy applies where guilt is not proven. The other amendments try to ensure that when the court issues remedial action it has the capacity to ensure that it is implemented and that there is a penalty for failure to implement that remedy against those who so fail.

Dominic Grieve: The hon. Member for Manchester, Central has entirely worthy objectives within the context of the remedial orders. The problem that I haveI have mentioned it before, but this is a good time to mention it again, because we are now discussing the relevant clauseis that there is a big question mark over the entire framework of remedial orders in the Bill.
As I think I mentioned on Second Reading, a serious accident that leads to death will, irrespective of a prosecution under the Bill, be investigated by the Health and Safety Executive or, potentially, by a local authority through its health and safety inspectors. A panoply of powers is available to the HSE and those inspectors in respect of deficiencies, which include the power to issue a prohibition notice, which says that a particular method of operation must cease completely, or an improvement notice, which says that a body must carry out certain improvements to its procedures within a set period of time, or in some cases a mixture of the two.
Given my experience with manslaughter cases and cases of similar seriousness, and the likely numbers of such cases in any year that will come to trial many months after the incident took place, it is most improbable that there will still be anything to be remedied by the time such a case reaches trial. That is my initial gut reaction. If there is still something to be remedied by the time the trial takes place, the HSE or the local authority has not done its job properly, which is a worrying phenomenon. However, it is my experience that the issue will have been dealt with.
I also point out to the hon. Gentleman that the HSEs powers to impose prohibition or improvement notices is quite independent of whether somebody is guilty of a breach of the Health and Safety at Work, etc. Act 1974. If those on the receiving end of such notices do not like them, their remedy is to appeal them to the employment tribunal, where the dispute is thrashed out. I have done such cases at the employment tribunal and I can assure the hon. Gentleman that the notice will bite until it is removed. There is no question of a company or a corporate body saying, Oh, lets appeal this to the employment tribunal, because in the meantime we can carry on with our practice until we are told that we have to stop it.

Ian Stewart: Rather than making play of the issue, I should point out that although we certainly understand the hon. Gentlemans rationale, the number of cases where inspectors have issued notices are relatively low.

Dominic Grieve: That may be true. One could argue that the HSE or local authorities certainly are short of staff to go round inspecting premises and slapping on the necessary orders. I am sure that if there were more inspectors, more prohibition and improvement notices would be served. However, my experience is that, where someone has died, which is what we are talking about, the situation is gone over with a fine-toothed comb, so I would be startled if, following that, prohibition and improvement notices were not imposed if they were required. Often, of course, when one is dealing with companies with any sense of responsibility, they move pretty quickly themselves to remedy any breach. Sometimes, in co-operation with the Health and Safety Executive or the local authority, they remedy the breach themselves, so that no notice ever has to be served.
I have two problems with the amendments. First, amendment No. 83 proposes a procedure whereby if there is a criminal trial at which someone is found not guilty, a remedial order is still imposed. We will not know the circumstances in which a not guilty verdict is returned. It may be after a full hearing, when the judge has had an opportunity to consider the matter and hear all the evidence, but it could happen, and sometimes does, at a much earlier stage of a trial, when the judge has had absolutely no ability to evaluate all the facts of the case. In those circumstances, unless the judge converts himself into an equivalent of the employment tribunal dealing with the prohibition or improvement notice procedure, he will be ill placed to deal with the issue in court.
One of the wider criticisms that I have of clause 10we could deal with it in a clause stand part debate, but we can deal with it just as easily nowis that it is unclear who will supervise and monitor the imposition of remedial orders and who will provide the expert input to the court about the remedial orders that may or may not be necessary. Let me make the position clear: I am not saying that that cannot be done, but it will need the active participation of health and safety inspectors from either the HSE or local authorities.
The blunt truth is that I question whether clause 10 has any real value at all. I am sorry to have to say that to the Minister. The attemptsworthy attempts, if I may say soby the hon. Member for Manchester, Central to beef it up seem to run into the practical difficulties that I have identified. It would be interesting to hear from the Minister how he really thinks the clause 10 regime will work.
I have a couple of amendments, which are due to be considered later. I may be able to short-circuit that discussion by saying that they would remove the word prosecution and insert Health and Safety Executive, precisely because it seems to me that the prosecution is in no position to make applications for remedial orders generally unless the HSE or some other responsible organisation is there to advise them.

Roger Gale: If the Minister wants to respond to that and if the Committee is happy, I am, again, perfectly content to consider those amendments as part of this group.

Gerry Sutcliffe: Thank you, Mr. Gale. I agree with the hon. Member for Beaconsfield that my hon. Friend the Member for Manchester, Central had a worthy objective in proposing his amendments. I understand the spirit that he is trying to generate in relation to them.
Clause 10 enables the court to order an organisation convicted of the new offence to take steps to put right the management failure that caused a death. It also allows the court to remedy any consequence of that management failure if the court believes that it, too, was a cause of death. For example, if the convicted company failed to put in place adequate systems for monitoring the safety of its activities, and the consequence of that was dangerous practice on the shop floor, the court would be empowered to order changes both to the systems and to the practices that led to the fatality.
We expect the use of remedial orders to be relatively uncommon after a conviction, for the reason that the hon. Gentleman gaveregulators would already have acted. However, it would still be useful to enable a court to add its weight to the necessary measures that a convicted defendant needs to take to put its house in order.
Amendment No. 83 is designed to extend those powers, so that courts can impose remedial orders on organisations that have not been convicted of corporate manslaughter. It is an extremely unusual step to impose a court order on a defendant who is not convicted of a criminal offence. I understand the point that organisations may carry out practices that, although not grossly negligent and warranting a conviction under the new offence, are not safe. However, organisations that have been investigated and subsequently prosecuted for corporate manslaughter will have been thoroughly scrutinisedlong before the trial, hopefullyby the relevant regulator.
For example, the Health and Safety Executive is empowered to issue improvement notices and prohibition notices that require illegal or unsafe practices to be remedied. Failure to comply can result in prosecution, leading to imprisonment and fines of up six months or £20,000 in the magistrates court and two years or unlimited fines in the Crown court. Other regulators have similar powers. Unsafe practices are therefore likely to have been identified and addressed prior to the trial.
It is also worth noting that an organisation acquitted of manslaughter may be convicted on health and safety offences, in which case remedial orders would still be available to the court. We therefore believe that there are sufficient opportunities to intervene in organisations to ensure that unsafe practices do not continue without extending what is intended to be part of the response to a criminal conviction to an unconvicted organisation.
Amendment No. 86 is designed to make it possible for a court to identify individuals who will be responsible for ensuring that the remedial order is complied with. Amendment No. 110 specifies that any person named in an order may be guilty of contempt of court if the company fails to take the steps set out in the order. The penalty for that would be up to two years imprisonment or an unlimited fine. The effect of that would be essentially to impose a sanction on an individual for the faults of a company, a concept that my hon. Friend will pursue later. I am uneasy about the implications of that.
Although I accept that there is concern to ensure that organisations take remedial orders seriously, the proposal raises several questions. First, how does the court decide on whom to impose the order? One solution might be to impose it only on those who have health and safety responsibilities, but that might have the perverse effect of discouraging people to take on responsibility for such a crucial part of an organisations functioning. Alternatively, the order could be imposed on all directors. However, it is not clear how the court would deal with the fact that some directors may be in a better position to control compliance than others. There is also the matter of what happens if named people leave the company.
We want organisations to comply with remedial orders when they are made, which is why we have made the consequence of not complying with an order more serious than was the case under the draft Bill. Breach of the order will be heard in the Crown court, not the magistrates court, and we have raised the penalty for non-compliance to an unlimited fine.

Tony Lloyd: I seek some information from my hon. Friend. Obviously, the measure is technical and important. Under the Health and Safety at Work, etc. Act 1974, the prohibition notices that are imposed on a company stop the work process. If the company continues to work and breaches the order, is the remedy operated against the company or against the individual?

Gerry Sutcliffe: As my hon. Friend said, the matter is technical. The 1974 Act certainly gives the opportunity to send individuals to prison for breaches and consistent breaches of their obligations. We know what he is trying to achieve by holding individuals to account but, like the hon. Member for Beaconsfield, I do not think that it is right to take the action set out in the amendments. We will talk about corporation probation and other issues later. I ask my hon. Friend l to withdraw his amendment, having put on the record the issues that it raises.
The hon. Member for Beaconsfield referred to amendments Nos. 141 and 142. They would mean that the Health and Safety Executive, as opposed to the prosecution service, would make applications for remedial orders. I see merits in that proposal and will deal with the wider point about regulator involvement in a moment. I wish first to explain why I shall not be supporting the amendment.
The Health and Safety Executive will not always be the appropriate regulator. It may be that the Food Standards Agency is the relevant regulator, or the Office of Rail Regulation, so limiting the role to the HSE is not apt. That, of course, can be remedied, but whichever is the appropriate regulator, the prosecution service will bring the case and the regulator will only have limited formal involvement in the trial. It would not be appropriate to give it a formal role at this stage.
We fully expect the prosecution to liaise closely with the relevant health and safety authority prior to making any application. It will then be open to the convicted organisation to make representations to the judge about the order, and to present any evidence that the order would be inappropriate or unnecessary. We think that that will provide sufficient safeguards against misguided orders.
The Bill does not make specific provision for monitoring compliance with remedial orders. However, the relevant enforcing body such as the Health and Safety Executive will have a strong interest in ensuring that safe practices are adopted in a convicted organisation. We are therefore confident that, as well as being involved in the drawing up of remedial orders, regulators will be fully engaged in monitoring compliance with such orders, without the Bill making specific provision in that respect.
I hope that that provides the answers sought by the hon. Member for Beaconsfield in relation to amendments Nos. 141 and 142, and that my hon. Friend the Member for Manchester, Central will withdraw his amendment.

Roger Gale: In view of the situation that I have created, I invite Mr. Grieve to speak.

Dominic Grieve: I am grateful, Mr. Gale and I hope that not too many problems have been caused by short-circuiting a debate on my closely linked amendments. The Minister has reassured me sufficiently, so I shall not press those amendments to the vote; they were probing amendments anyway.
The Minister has acknowledged that the expertise lies with the regulatory authoritiesthat is quite clear. It is therefore obvious that if the remedial orders are to have any value, the regulatory authorities will have to provide input at the beginning, advise the prosecution, and monitor compliance, though I accept the Ministers point that the relevant authority will not necessarily be the HSE. Regulations will have to be made by the Government to ensure that that happens. It may seem obvious that it should happen, but I sometimes think that without a statutory obligation and responsibility it is amazing how much organisations are willing to wash their hands. It may not be a matter for primary legislation, but I suspect that regulation will be necessary.
There is another matter, which I have mentioned in a wider context, which applies to remedial orders and to prosecutions generally. The Crown Prosecution Service, and the police, are ill equipped to deal with technical prosecutions in the field of health and safety; they do not really know what they are doing. I have been persuaded of that by the one or two occasions on which I have seen a prosecution happen after investigations of possible corporate manslaughter as it currently existswith individual directors liability. The trouble is that the CPS and the police tend to take the lead over the HSE and the enforcement authorities because, in the hierarchy of things, manslaughter is perceived as more serious than a breach of the Health and Safety at Work, etc. Act 1974.
The result is that interminable interviews take place at police stations, in which the interviewer is not the person who really knows the issues. The anecdotal evidence is that that personthe HSE inspector or the local authority inspectorsits on a chair in the corner, with his eyes rolling to the ceiling, thinking, Cant we get on with it? This person isnt asking the right questions. That problem goes right through the entirety of the prosecution machinery in the Bill, but it applies particularly to remedial orders. Deciding which such order is appropriate will require the closest involvement of the relevant enforcement agency. The Government will need to make quite clear to those agencies what they have to do, and will also need to make clear to the CPS that the agencies will be, if not equal to the prosecution, very important players in the process.

Tony Lloyd: I have enormous sympathy with the points that the hon. Member for Beaconsfield has just made. However, although I understand his and the Ministers arguments, which are powerful, a problem in our society is that even regulatory authorities have not always done their job properly. Sometimes, even in doing part of the job they have not gone as far as the public may have expected. The railway industry is a classic example, and over the years I have been known to say one or two unkind things about the railway inspectorate. In his summing up in the Hatfield disaster, for example, the judge observed that it was
He said it was,
the worst example of sustained industrial negligence in a high-risk industry
It is an industry that has its own regulator, but that regulator failed to act in a satisfactory way to protect the travelling public. That is an important point to bear in mind if we say that the prohibition system as it exists must always work.

Ian Stewart: I distinctly remember being shocked that the 1974 Act was, to my knowledge, the first Act to allow the police to enter a site. The purpose of the Act was, in cases where something was so dangerous that it could not be dealt with by the regulatory approach, to give the police the power to go on to a site to save life. We must remember that although we are interested in process, this is a very complex areahon. Members who have argued with me about prevention rather than remedy should remember that.

Tony Lloyd: My hon. Friend makes a good point. All legislation of this kind is better if it is part of prevention rather than remedy, but when things have gone wrong and can no longer be remedied, we need to examine how to build in a remedy. A man called Kenneth Farr was decapitated by an unsecured car park barrier at Asda in Cardiff; a similar accident happened at another Asda car park that resulted in a prosecution and a fine, but the regulatory authorities failed to insist that they brought in a proper remedy.
Much as I respect regulatory authorities, they do not always get it right. It may sometimes be appropriate for the court to be involved, which is obviously why I support my hon. Friends amendment seeking to give the courts that capacity. There may be circumstances in which that is necessary although it may be rare in cases of corporate manslaughter that the remedy has not already been properly actioned. When that remedy is needed it is helpful to give the court that power.
I will seek leave to withdraw the amendment, but I hope the Minister will reflect on two things. First, the reason I asked him about the operation of the 1974 Act is that under that Act a remedy can be applied against individuals where the company fails to act on a prohibition order or the equivalent. The Minister confirmed my belief in that respect. The comparison to the amendment we have sought to move is a real one. Will the Minister reflect on that as it may not be the right way of doing it but we should at least consider it quite carefully?
Secondly, I do not think the hon. Member for Beaconsfield heard me earlier when I mentioned the Marchioness tragedy and made the point that a prosecution was taken forward. The prosecution failed, but it was clear at the end that there should have been remedies applied. Although it may be unlikely that by that stage of other cases, the remedy would still be lacking, if it were lacking, it would be sensible in the final analysis for the court to make an order imposing the remedyeven if the prosecution has failed. I hope the Minister will think about what lies behind these amendments. In recognising the time of day and the will of the Committee, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Roger Gale: For the record, I confirm the Chairs understanding that amendment Nos. 141 and 142 have been dealt with, which leaves us with only amendment No. 138 to clause 10 to deal with.
Further consideration adjourned.[Mr. Alan Campbell.]

Adjourned accordingly at six minutes to Four oclock till Tuesday 31 October at half-past Ten oclock.